Paid Sick Leave For Swine Flu (H1N1) Victims!

November 30, 2009

As if we need another paid leave! Well get ready, legislation is being introduced in both houses that would guarantee paid sick leave for employees infected by the H1N1 virus or other “flu like illnesses,” where the employee works for a business with at least 15 employees. The legislation is being considered on an emergency basis and if passed as such would take effect 15 days after being signed into law! The good news is the bill, if passed, would be a temporary measure designed principally to combat the H1N1 virus and the leave provisions would automatically expire after two years (yeah, right and if the virus is still around???).

By the way, Senator Chris Dodd, is the key sponsor of the bill in the Senate. It is his stated belief that “families should not have to choose between staying healthy and making ends meet.” The bill, if passed, would allow individuals with the H1N1 flu to stay at home instead of coming to work, while sick, and will make it easier for parents to care for children who must stay home to due to the flu or school and childcare closings. The provisions of the bill would allow employees to earn up to SEVEN PAID sick days to use for:

1. The care for a child who is sick with H1N1 virus or “flu like symptoms;”

2. To care for a child whose school or child care facility is closed because of the spread of contagious illness;

3. Their own issues related to their personal flu like symptoms or care.

The House bill is being referred to as the Emergency Influenza Containment Act and is much better for employers. It is being introduced by California Congress members George Miller and Lynn Woolsey, and limits the leave to 5 days, provides that the leave will only be paid if the employer requires the employee to stay home, and provides for leave only for the employee’s own illness.

Neither of the two bills appears to address paid sick days already being provided by employers. In addition, my concern is that employees may abuse the new bill because the provision includes “flu like symptoms.” Look, we can all agree that employers and employees do not want individuals coming to work that are ill but I do not see the necessity of creating another paid leave when employees already have options such as paid sick days, vacation days, and personal time off (PTO). Once a law is created, although stated to be temporary, it will become a permanent benefit.

I will keep you posted on this one.


Employers Jailed For Failing To Pay Back Wages

November 23, 2009

The failure to pay back wages are normally a civil issue, not a criminal act. Well, it looks like that might be changing! The U. S. Department of Labor (the big boys!) are looking to punish employers who do not pay back wages. Ask the owners of Southern California Maid Services and Carpet Cleaning Inc. who found out recently that the feds are serious. The DOL have made it clear that they will take employers all the way to jail to enforce back wage orders.

The facts are simple enough. The DOL filed a lawsuit against the owners of the maid service-Sergio Maldonado and Lorenzo Rubio of Rolling Hills Estates. They lost, and were ordered by a California court in August 2007 to pay 3.5 million dollars in back wages and penalties to 385 of their current and former employees. The owners IGNORED the court order (don’t know who advised these guys!) and the DOL decided to file a contempt of order which was granted by the court. On October 30, 2009, the owners were arrested and held for 4 days in a Santa Ana jail. The owners were released following a hearing and again ordered to pay the entire 3.5 million by November 12, 2009.  or face new contempt charges.

Here’s the real kicker. The new Labor Secretary, Hilda Solis, has made it quite clear that she intends to make good on her promise to come down hard on employers who fail to pay properly. To enforce her directives, she has hired 250 new wage & hour inspectors to get judgments, and to enforce those judgments.  California’s Department of Industrial Relations may well follow the DOL’s lead. There is no secret that class action wage & hour lawsuits are running out of control. Employers have got to understand that they have to pay correctly and failure to do so, even by accident, will cost them much more than the wages owed. Please check, and re-check, to assure that all breaks, overtime, and the proper classification of employees (exempt v. nonexempt) are within compliance.  If employers take the time to conduct a self-audit they will not have to worry about the feds, California, or class action lawsuits. If you need help let us know.

Cheesecake Factory Learns A Hard Lesson-Managers Cannot Look The Other Way!

November 16, 2009

As many of you may recall that have heard me speak either in a seminar or as a guest speaker I have always stressed that mangers or supervisors have to “take every complaint seriously!” The Cheesecake Factory learned this lesson the hard way to the tune of $345,000 that they will have to pay six male employees (yes males, not females!) who allegedly were sexually harassed and assaulted by other male employees at one of their restaurants.

The payment settles a lawsuit filed in 2008 by the U.S. Equal Employment Opportunity Commission, which claimed that Cheesecake Factory knew about and tolerated repeated sexual assaults against the six men by a group of other men who worked in the kitchen. The EEOC said the evidence “overwhelmingly showed that the abusers touched the victims inappropriately, made sexually charged remarks and forced the victims into repeated incidents of simulated rape.” Managers, according to the EEOC, also witnessed employees “dragging the men kicking and screaming into a refrigerated room.” Apparently the victims complained to managers, who never stopped the abusive behavior. One victim even called the police but no charges were ever filed.

The Cheescake factory, through their legal spokesperson denied the allegations stating that “Actions of this nature are not tolerated by us.” The consent degree did not assign any liability but the company decided to settle the matter due to the high cost of litigation. In addition to the monetary relief, the Cheesecake Factory will have to train their employees and managers about sexual harassment and they must assign an ombudsperson to field and address complaints about sexual harassment.

What a waste of money! Currently I have done pretty close to 150 seminars this year on AB1825, the mandatory sexual harassment training required by California. For those of you that have already completed the training know that I have been emphasizing that managers cannot ignore complaints or inappropriate behavior. This is a classic example of managers not taking this kind of behavior seriously.

As a final point, if you have not completed the training for this year you have to get it done by December 31. This is the mandatory year. Don’t think that if you had the training anytime last year that you are covered. You are not!!

“Family” Discrimination-A New Area of Concern

November 9, 2009

Last year, the Equal Employment Opportunity Commission (EEOC) said it would make “Family responsibility discrimination” an enforcement priority. On the face of it, it appears to be a new protected class category when in fact it is not. The EEOC uses the term as a catch-all for bias claims filed under sex-discrimination laws, if gender is involved in the adverse action. The simple truth of it means that a company/manager is treating women with children differently than men with children.

The EEOC looks for specific behaviors such as:

1. Asking female job applicants about their family yet they do not ask male applicants (an interviewer should never make any inquiry in this area).

2. Giving women with children less-favorable assignments than their male counterparts.

3. Treating women with children less favorably than childless women.

4. Being hard on men who take time off to care for their children.

5. Denying men’s request for family-related leave while approving similar requests made by women.

The other area of concern has to do with caregiving responsibilities. An increasing portion of caregiving goes to the elderly, and this is a trend that is likely to continue as the Baby Boomer population ages. This is a subtle area. Our parents are living longer and may begin to have issues be it physical, or mental. With the large population of Baby Boomers who are continuing to work (longer) they will have the responsibility for “eldercare.” As eldercare becomes more common, workers in the new emerging “sandwhich generation,” (those workers between the ages of 30 and 60) will have to face the responsibilities of caring for their children and their parents.

The EEOC is also looking at the fact that such caregiving activities are more disproportionately associated with women and may even more pronounced with women of color which adds in another protected class.

In general, employers need to be aware that these areas, some obvious and some not so obvious, need to be considered when an employee is requesting time off. We understand that an employer has a business to run, however, these are the types of issues that can cause unecessary liability.

Suspensions-With or Without Pay?? A New Concern!

November 1, 2009

In the past, employers had an option regarding compensation for suspended employees–pay or unpaid. Most suspensions are for disciplinary reasons and are normally one, two, or three days, and are unpaid. Suspensions that are handed out pending some type of investigation can be paid, or unpaid, and are usually unpaid.  It’s really at the option of the employer–until now!

Apparently the California Division of Labor Standards Enforcement (Labor Board) treats the unpaid suspension like a layoff if an employee is suspended without pay and not given a definite return-to-work date within the same pay period. Their logic is that the employee is legally determined to have been terminated as of the date of the  suspension. As many of you may recall we have constantly preached to limit the number of days for any suspension. The EDD also considers extended suspensions (usually two weeks) as a termination.

According to the Labor Board a suspended employee must be paid all earned wages and benefits (meaning vacation or PTO that has not been used) on the last day that the employee performed services prior to the suspension. The whole issue appears to be whether or not the suspension takes place within the “current” payroll period. With this in mind, if you have to suspend an employee because of an investigation, give the individual a “return-to-work” date within the same pay period. If there is only a day or two left in the pay period merely suspend the person the day after the new pay period begins (if it’s only a day or two away) and be sure to give the return-to-work date (try to keep that date within three days).

If you do not follow the above very closely and the employee files a claim with the Labor Board, the suspension will be deemed to be a termination and any failure to pay all monies owed could subject you to waiting time penalties ( a day’s wage will be owed to a maximum of 30 days).

If you are confronted with the possibility of having to suspend an employee please call and speak with me directly.